FIRST AMENDMENT
UNIT 12
I. Religious Pluralism


Occurs when society has
many religions being
practiced within it.
Conflicts are normal when
government tries to protect
peoples’ right to worship
freely while not forcing
religious beliefs
upon others.
II. FREEDOM OF RELIGION
A. Establishment clause
Government cannot
prohibit any religion nor
favor one religion over
another. It is also not
allowed to establish an
official state religion.
B. Free Exercise Clause
Freedom OF religion,
not freedom FROM
religion
 The practice of religious
beliefs or religious
speech shall not be
infringed on by the
government.
E.g. Forcing students
to salute the flag against
their beliefs

C. Compelling Interest Test


Westboro Baptist Church v. Snyder
Restrictions on religious
practices must face strictest
scrutiny by the courts. That is,
they must have an extremely
vital reason to abridge a
person’s religious liberties.
It is hard for the government
to meet this compelling
interest threshold as it faces a
severe burden of proof in
making such restrictions.
But, don’t overdo it!

If the gov’t actually
provides the necessary
burden of proof, then
it must only use the
least drastic means
to achieve its stated
purpose.
Prohibitions to Free Exercise
One man’s culture can
be another man’s
crime when it involves
religious practices.
 The government has
established exceptions
to “free exercise”
based on community
health, safety, or
morals reasons.

Prohibited practices:
Oregon v. Smith
Reynolds v. United States
D. Freedom of Religious Belief

Government must
maintain neutrality in
any disputes between
religions and their beliefs.

Courts will refuse to hear
such disputes unless they
involve other rights within
the argument and then
only decide on the nonreligious rights at issue.
E. Interpretation of 1st Amendment

Wall of separation- No
official relationship can exist
between the government and
any religion or religious practice.
No religion can be preferred
over another.

Accommodation- Some
things can be allowed for
government to have a
“relationship” with religion.
- What would be some other
“accommodations”?
Accomodations of Religion
1. Lynch v. Donnelly (1984)
Students, research this
case before class !
OK
2. Christmas & Thanksgiving
are national holidays, so
gov’t workers get paid time
off.
3. Public school plays and
concerts must balance
religious themes with
secular ones.
NOT
OK
Tax Accomodation
Government cannot tax a religion’s
organization, programs or property.
 Money collected by the religion must be used
to support its faith and its works.
 Using the pulpit for political purposes can
remove the tax exemption.
- Examples: telling people who to vote for,
calling for people not to pay their taxes, etc.
 Religious members can run for office because
they are citizens.

III. Landmark Religious Cases
A. Lemon v. Kurtzman (1971)
B. Engel v. Vitale (1962)
C. Abington School
District v. Schemp (1963)
D. Wisconsin v. Yoder (1972)
IV. Freedom of Speech
A. The rules:
1. Belief: Anything you want.
2. Verbal (oral) speech:
Speak but don’t act illegally.
3. Symbolic (silent) speech:
Symbols can be used to
represent verbal speech and
are equally protected.
Freedom of Speech (cont’d)


Obscenity – is NEVER
protected speech. Individual
community standards decide
what is or isn’t obscene speech.
Sedition – Treasonous speech
in general.
- Speech against the gov’t
policies and actions is allowed
as a normal part of political
discourse. The 1st Amendment
allows for the petition of
government.
Freedom of Speech Cont’d)


Libel / slander –
Malicious, untruthful speech
designed to publicly humiliate
someone. Not protected; if it’s a
lie, don’t say it!
Fighting words (aka: direct
incitement) –
Speech that incites people to
commit illegal acts is punishable
if there is imminent danger that
such speech will cause
dangerous acts to happen.
A. Schenck v. United States (1919)
B. Gitlow v. United States (1925)
C. Chaplinsky v. New Hampshire (1942)
Symbolic Speech
Symbols, signs
clothing, & other
methods of silent
expression are
considered forms
of speech and thus
are protected.
A. Tinker v. Des Moines School District
B. Texas v. Johnson (1984)
VII. Freedom of the Press
A. Sunshine laws- All
government meetings must be
held in public and accessible
to citizens and the press.
B. Freedom of Information
Act (FOIA)- Federal law
requires the gov’t to release
non-classified information to
the press or public upon
request.
- Requesters can be billed for
processing and mailing fees.
Freedom of Press (cont’d)

Shield laws - Laws
that protect a
journalist’s sources of
information from being
divulged in court.
- Recognized by more
than half the states but
NOT recognized by the
federal courts.
Prior Restraint



Definition: Government censorship of the
press by telling it in advance what it cannot
publish.
The state must have a compelling interest
to restrict a free press in any way and be able
to meet the Court’s strictest scrutiny test.
The Court has ruled the public’s right to
know outweighs most gov’t concerns, even
some cases involving national security.
NEAR V. MINNESOTA (1931)
NY TIMES v. U.S. (1971)
VIII. FREE EXPRESSION
VERSUS ORDER
A. Hazelwood v. Kuhlmeier (1988)
Virginia v. Black (2003)
Speech Codes
May be instituted by gov’t authorities and
other organizations (e.g. universities, work
places, courts, military, etc.) to prohibit a
hostile atmosphere via intolerant speech
(e.g. gay bashing, racial bigotry, religious
slurs, misogyny)
You should know your college’s speech
code before you attend because ignorance
of it will not be an acceptable excuse!
IX. OBSCENITY
A. What constitutes obscenity?
- Who says what is obscene
or within the bounds of
acceptable speech?
Answer: Local gov’ts
- When does such speech
cross from merely vulgar to
being obscene?
- Obscenity, written or
spoken, is NEVER protected
speech!
B. Miller v. California (1973)
X. Freedom of Assembly & Association
A. People may associate with
those they wish and
exclude those they don’t
want to be with.
B. The government may
place limitations on some
forms of assembly and
association, but must have
a compelling interest if
challenged by the courts.
1. Parolees, minors, pedophiles, those with
communicable diseases, etc.
2. Gov’t can deny use of public property to people
if events are deemed unsafe. Parades, rallies,
fireworks displays, etc. can require permits.
3. Blocking access to public buildings or private
property is not an allowable action.
4. Labor strikes must be held off company property
and on designated public property only.
5. Any assembly that threatens other peoples’
rights (fighting words, noise, safety issues) can
be curtailed .
B. Free Association
 Private groups may legally discriminate under
the 1st Amendment by choosing who they want
or don’t want to associate with.
Example: Boy Scouts of America v. Dale
Issue:
Association (cont’d)
 A private golf club can refuse to admit
women.
 High school students can have proms off
campus and invite only those they wish.
 Religious groups can say who they’ll
admit as members.
 Who CANNOT discriminate in terms of
association?
FIRST AMENDMENT RIGHTS
END OF UNIT 12